COVID-19, Major Questions, and Pouring New Wine from Old Bottles

Friday’s oral argument NFIB and Department of LaborThe legal challenge to the Occupational Safety and Health Administration’s Emergency Temporary Standard mandating large employers to require employees to be vaccinated for COVID-19 by their employees highlighted the legal issues that can arise when federal agencies try to use old statutory authority in order to solve contemporary problems.

Congress delegate authority from Congress to agency so they can act in the future. But the passage time could still affect how we interpret what authority was delegated or raise questions about agencies acting illegally or in unconstitutional ways. Repurposing old statute grants could raise more questions about democratic accountability that the amount of delegation. These questions were explored by Chris Walker and me in our Iowa Law Review The article “Delegation and Time” focuses on the possible actions Congress can take to address it.

It is almost inevitable that this issue will arise. The reason Congress delegated broad authority in the first place to federal agencies is to allow agency officials to resolve new or unforeseen problems without the need to consult the legislature. However, it can sometimes be difficult to claim that Congress authorized specific types of actions if they were not aware of the exact nature or purpose of the proposed regulatory steps. These concerns can grow as more time goes by without any legislative action.

The OSHA vax or-test ETS case demonstrates that Congress wanted to grant OSHA power to deal with “new hazards” in workplaces and new workplace risks. This includes contagions that may be spread at work. This does not solve all legal issues surrounding the ETS. OSHA has never attempted to establish a similar rule in half a century since the OSH Act was passed.

Take a look at this exchange between Chief Justice Roberts & Solicitor General Prelogar.

CHIEF JUSTICE ROBERTS . . You are claiming Congress took action. You’re claiming that Congress did not act.

It’s unlikely that you were thinking of COVID. It was almost as close to today’s Spanish Flu problem than it was to that of the Spanish Flu.

Now I can see that the agencies are better than Congress. They can also move faster than Congress, which I get. However, this mandated vaccination coverage is something that has never been done by the federal government before.

GENERAL PRLOGAR: There has never been a standard like it. Federal government encourages vaccination, as does this standard and provisions such as the blood-borne pathogen standard. OSHA standards include medical testing and masking of employees.

CHIEF JUSTICEROBERTS: It is an important point that we need to consider. For example, the state police are more likely to have such powers than the municipalities. We’ve heard many cases from the states and the municipalities that provide evidence of that.

Also, it is — Congress did pass a broad provision 50 years back, but it is difficult to argue. It gives agencies the freedom to take — this, I assume, is invoking Major Cases doctrine. The agencies are free to create any regulation they want. Congress was not familiar with it in 1970.

OSHA addressed workplace disease risks with its other rules, even though Congress knew of the risk of infection when it passed the OSH Act. OSHA has not used its ETS authority to this effect and the Chief Justice said that Congress had never suggested that OSHA adopt a standard beyond workers’ safety at work. Similar concerns were raised by the Chief when he asked if OSHA’s ETS was to be understood either as a work safety rule or a “workaround” that allows OSHA to avoid limits on its agency authority which prevent a national vaccination policy.

The Chief Justice asks these questions because he is concerned that an older statute shouldn’t be taken as authority for agency authority. This concern applies especially to cases where Congress had the chance to grant such authority to the agency but has not done so. The Chief was skeptical that agencies could make new wine from old bottles. This raises questions about when agency wine is considered to be “new” and if it should differ from the agency’s previous work.

In the way he framed his questions, the Chief seemed to be channeling Justice Kavanaugh’s “major rules” gloss on the major questions doctrine, which cautions courts against recognizing old statutes as a source of substantial-yet-previously-undiscovered regulatory authority. In rejecting the CDC’s eviction prohibition, we saw the Court take a similar approach.

It is a general idea that Congress delegate power to specific agencies to solve particular problems. It cannot be claimed that Congress has delegated authority that can be reused or expanded by agencies. This is at the very least without clear evidence that Congress wanted to do this. These elephants are, it is argued, not hidden in mouseholes. These elephants must be clearly identified.  In my forthcoming chapter “A Step Zero” for delegations, I argued for such an approach.

The OSHA ETS can still be challenged. There are many other options. The Court might invalidate OSHA ETS on narrower administrative law grounds. A Court might also decide the rule is legal, or the government’s defence is sufficient to justify a stay. The Court will not be influenced by concerns over major questions raised at argument. Fear not, as the Court hears the arguments on major questions, it will be able to fully explore its contours. West Virginia v. EPAThe next month.